State v. Leonard

• Decision Date: 30 April 1869
• Citation: 46 Tenn. 307
• Parties: The State v. Thomas E. Leonard.
• Court: Tennessee Supreme Court

46 Tenn. 307

The State

v.Thomas E. Leonard.

Supreme Court of Tennessee.

April Term, 1869.

FROM MEMPHIS.

At the ______ Term, 1869, the defendant demurred to the indictment in this case. The demurrer was sustained by the Court, and the State appealed. Judge WM. HUNTER, presiding.

WM. M. RANDOLPH and THOS. H. COLDWELL, Attorney-general, for the State.

KORTRECHT & CRAFT, for Defendant.

HENRY G. SMITH, J., delivered the opinion of the Court.

Indictment against a County Trustee, for embezzling and converting to his own use, the moneys of the county which came to his hands by virtue of his office.

The indictment charges, that the defendant did, unlawfully, fraudulently and feloniously, and without authority of law, embezzle the moneys of the county, and did convert them to his own use, by failing and refusing to pay over the same to his successor in office, etc.

The objection is, that, the failing and refusing to pay over to his successor, is not a conversion, or evidence of a conversion, by the defendant, to his own use, in the sense of the Code, section 4706, which defines the offense.

The objection is without merit. The Code, section 4706, enacts that, if any person charged with the safe-keeping, collection and disbursement of money or property belonging to the State or any county, use any part of said money or property, by loan, investment, or otherwise, without authority of law, or convert any part thereof to his own use, in any way whatever, he is guilty of embezzlement.

Failing and refusing to pay over the money to his successor in office, is, unexplained, evidence of a conversion of the money to his own use, and if proved, will establish the allegation of the indictment that he did embezzle and convert the money to his own use. Failing and refusing to deliver a chattel, upon demand of the person entitled to possession, is evidence of conversion, in the civil action of trover.

Of course, proof may be made by the defendant, of facts relieving the failure and refusal to pay, of its felonious character.

The intent of the Legislature was, to make such failure and refusal embezzlement, and, as such, punishable. This is manifest, from the fact that the Legislature has made, by section 4712, of the Code, the fraudulent appropriation of money or property, by any person in whose hands, or under whose control it may be, by his position as clerk, agent, factor or bailee, or on any other contract or trust, by which he was bound to deliver or...